Federal Underwriters Exchange v. Guest, 1901.

• Decision Date: 28 April 1939
• Docket Number: No. 1901.,1901.
• Parties: FEDERAL UNDERWRITERS EXCHANGE v. GUEST et al.
• Court: Texas Court of Appeals

129 S.W.2d 708

FEDERAL UNDERWRITERS EXCHANGE v. GUEST et al.

No. 1901.

Court of Civil Appeals of Texas. Eastland.

April 28, 1939.

Rehearing Denied June 9, 1939.

Error from District Court, Jones County; W. R. Chapman, Judge.

Separate suits, which were consolidated for trial, under the Workmen's Compensation Act by Gay Guest, claimant, against the Federal Underwriters Exchange, insurance carrier for J. T. Evetts, doing business

as the "Good Luck Casing Crew," and the Casualty Underwriters, insurance carrier for S. C. Herring, to set aside an award of the Industrial Accident Board, wherein the Hendrick Memorial Hospital intervened. Judgment for claimant against the Federal Underwriters Exchange, and favorable to the Casualty Underwriters and the intervener, and the Federal Underwriters Exchange brings error.

Affirmed.

Benbow, Saunders & Holliday, of Dallas, for plaintiff in error.

Grindstaff, Zellers & Hutcheson, of Weatherford, Touchstone, Wight, Gormley & Price, of Dallas, and E. S. Cummings, of Abilene, for defendants in error.

GRISSOM, Justice.

This is an appeal by Federal Underwriters Exchange from a judgment in favor of the plaintiff, Gay Guest, in a case wherein two Workmen's Compensation cases were consolidated. Both cases grew out of the same injury sustained by Gay Guest on October 8, 1936, when a line broke and let a joint of casing fall on him while he and other members of the "Good Luck Casing Crew" were running pipe in an oil well being drilled by S. C. Herring. Herring's driller was in charge of the oil well drilling operations when Guest was injured. The Federal Underwriters Exchange paid Guest compensation for a short time and then stopped making payments. Proceedings were had before the Industrial Accident Board and separate suits later filed by Guest against Federal Underwriters Exchange, the compensation carrier of J. T. Evetts, doing business as the "Good Luck Casing Crew," and Casualty Underwriters, the compensation insurance carrier for S. C. Herring. The Hendrick Memorial Hospital intervened in said causes. The judgment was for Guest against the Federal Underwriters Exchange, and favorable to the Casualty Underwriters and the Hospital; the Federal Underwriters Exchange alone has appealed. Other facts necessary to an understanding of the questions presented will appear in a discussion thereof.

The Federal Underwriters Exchange contends, by its propositions one and two, that the judgment should be reversed and the cause dismissed for want of jurisdiction, because: First, the proceedings before the board were not sufficient to show a claim within the jurisdiction of the board, nor within the jurisdiction of the district court. Second, because the certified copy of the award of the board does not show that it is (a) the act of the Industrial Accident Board, or (b) the act of a majority of the members thereof, and (c) it does not show to be a final ruling or decision of the board from which an appeal may be taken.

It has recently been held by our Supreme Court that it is not necessary either for the purpose of showing jurisdiction of the board, or as a predicate to the jurisdiction of the court in which a suit may be filed to set aside the award of the board, that the claim filed with the board state the amount claimed by the employee, or facts from which such amount can be definitely determined. Booth v. Texas Emp. Ins. Ass'n, Tex.Com.App., 123 S.W.2d 322, 331; Traders & General Ins. Co. v. Belcher, Tex. Civ.App., 126 S.W.2d 35, and cases there cited.

The concluding sentence of section 8 of Art. 8307, Vernon's Ann.Civ.St., provides: "Any order, award or proceeding of said board when duly attested and sealed by the board or its secretary shall be admissible as evidence of the act of said board in any court in this State." The copy of the award introduced in evidence bore the usual certificate and seal of the secretary of the Industrial Accident Board. Under the statute it was admissible and constituted evidence of the act of said board. Certainly the presumption is that it was valid. The award which said defendant contends was not such a final award as could be appealed from is as follows:

                "Gay Guest, Employee vs. Good Luck Casing
                    Crew, Employer. Federal Underwriters
                               Exchange, Insurer
                                    "W-2440
                

"On this 22nd day of April, 1937, after due notice to all parties, came on to be considered by Industrial Accident Board claim for compensation by Gay Guest against Federal Underwriters Exchange, and Board finds and orders:

"On October 8, 1936, Good Luck Casing Crew, a subscriber to the Employers' Liability Law with insurance carried by Federal Underwriters Exchange had in its employ Gay Guest whose average weekly wage was $24.34, and compensation rate $14.61 per week under the Act. On said date Gay Guest suffered injuries in course of employment resulting in his total incapacity for performance of labor for an indefinite period in the future not exceeding 401 weeks.

"Federal Underwriters Exchange is ordered to pay Gay Guest $14.61 per week for an indefinite period in the future not exceeding 401 consecutive weeks from October 8th, 1936, unless changed by subsequent award of the Board. Previous payments of compensation, if any, shall be deducted from award."

The following authorities are relied upon by Federal Underwriters Exchange to support its contention that said award is not final and, hence, not appealable. Texas Emp. Ins. Ass'n v. Marsden, 127 Tex. 84, 92 S.W.2d 237; Petroleum Cas. Co. v. Webb, 127 Tex. 91, 92 S.W.2d 236; Tally v. Texas Emp. Ins. Ass'n, Tex.Com.App., 48 S.W.2d 988; Texas Emp. Ins. Ass'n v. Lemons, 125 Tex. 373, 83 S.W.2d 658; Jones v. Texas Indemnity Ins. Co., Tex. CivApp., 15 S.W.2d 1077; Arter v. Southern Surety Co., Tex.Civ.App., 29 S.W.2d 847, affirmed, Tex.Com.App., 44 S.W.2d 913. The Marsden, Webb, Tally and Lemons cases, supra, are hernia cases. It has been definitely decided in such cases that the award of the board directing the insurance carrier to furnish the compensation claimant an operation is not a final appealable award of the board. Tally v. Texas Emp. Ins. Ass'n, Tex.Com.App., 48 S.W.2d 988. Said cases have no application to the award in question and are not decisive of the question of whether the award is appealable. Jones v. Texas Indemnity Ins. Co., Tex.Civ.App., 15 S.W.2d 1077, writ refused, a decision by this court, merely holds that a letter by the board to a claimant's attorney simply declining said attorney's request for an immediate hearing of the claim, the board having never considered the claim on its merits, was not a final, and, therefore appealable award of the board. The only case cited by Federal Underwriters Exchange which we consider in any degree sustains its contention is that of Arter v. Southern Surety Co., Tex.Civ.App., 29 S.W.2d 847, 849. It was there stated:

"While the board determined that the injury appellant sustained `totally incapacitated him for the performance of labor,' it did not determine either that such incapacity was permanent or that it would continue as long as 401 weeks. It in effect determined to the contrary when it found, as is shown in the statement above, that appellant's incapacity would continue for an indefinite period.

"To mature the award as prayed for by appellant, this court would have to say, contrary to the conclusion of the board, that his total incapacity to labor would continue as long as 401 weeks from the time he suffered the injury.

"The judgment will be reversed, and judgment dismissing appellees' suit will be rendered here."

A writ of error was granted in that case, and, while the judgment of the Court of Civil Appeals was affirmed, it was without reference to the decision quoted. See Southern Surety Co. v. Arter, Tex.Com. App., 44 S.W.2d 913.

In Lumbermen's Reciprocal Association v. Warren, Tex.Civ.App., 272 S.W. 826, 827, writ refused, an award of the Industrial Accident Board in all material respects substantially like the one under attack in this case was sustained against the contention that it was not a final award of the board and, therefore, not appealable. The award and the decision of the court on said question are shown by the following quotation from the opinion in said case:

"`The Board further finds that, in consequence of said injuries, the said R. N. Warren suffered total incapacity for the performance of labor from September 8, 1923, down to this date, and will continue to suffer said total incapacity for an indefinite period in the future, and he is therefore entitled to recover and be paid compensation herein at the rate of $10.38 per week, beginning on September 16, 1923, and continuing thereafter down to and including this date, and to continue for an indefinite period in the future and until and unless altered, changed, modified, or terminated by subsequent agreement between the parties, in accordance with the terms and provisions of the employer's liability act, and subject to the approval of the Industrial Accident Board, or until and unless altered, changed, modified, or terminated by subsequent order, award, judgment, or decree of the Industrial Accident Board, but in no event to continue for a longer period than 401 weeks from and after September 8 1923.'

"Article 5246-44 of Vernon's Ann.Civ. St.Supp.1918 [Vernon's Ann.Civ.St. art. 8307, § 5], provides that an appeal may be prosecuted only from a final ruling or order. Appellant contends that the order in this case was not final but a continuing order. This criticism is without merit. Under the provisions of the Act (art. 5246-25 [Vernon's Ann.Civ.St. art. 8306, § 12d]) it is provided that the Board may on certain conditions review its award at any time during the compensation period. It follows from this article that the Board has no authority to make any award on facts similar to the facts of this case other than was in fact made."

The quoted language of...